“Salting”

“Salting” is a practice used by unions to organize the employees of a non-union employer by sending in union members, union employees or union sympathizers to apply for employment with the objective of organizing the employer’s employees into the union. Some of the applicants will appear to be well-qualified for the position applied for and will hold themselves out to be non-union in the previous employment history.

Once employed, the “salts” will start soliciting union participation from the employees during their time on the job. Once the employer learns of this activity, the union will file charges with the NLRB if any adverse action is taken against any of these employees. Also, these employees may try to provoke the employer to terminate their employment. Such action would expose the employer to possible liability.

Other job candidates will appear to apply for employment while wearing union shirts or insignia, hoping that they will be turned down for employment. If so, the applicants will then file charges with the NLRB, claiming that they were denied employment because of their obvious union support. In Toering Electric, the NLRB ruled that to qualify as an “employee” entitled to protection against hiring discrimination based on union affiliation or activity, the applicant must be generally interested in establishing an employment relationship with the employer.1

In September 2024, an administrative law judge declined to overrule Toering Electric.

The Board affirmed the judge’s decision finding that the employer violated the Act by refusing to hire three union organizers to open positions. because the employer did not present a legitimate business reason for considering hiring them. Absent such justifications, the failure to consider them was deemed to be motivated by antiunion animus.2

• On July 24, 2025, then-Acting General Counsel William Cowen issued a General Counsel memorandum providing Regional Offices with updated guidance for investigating salting cases.3 He affirmed that Toering Electric continues to govern salting cases and emphasized that Regions should prioritize gathering evidence from charging parties concerning whether the alleged discriminate applied for employment and possessed a genuine interest in being hired.

When investigating the first “employment application” component, Regions are directed to ask the alleged discriminate whether they applied for employment or authorized someone else on their behalf, obtain copies of all application materials in the charging party's or their witnesses' possession and explore the circumstances of personal interviews. In cases where unions have submitted batches of applications to an employer, Regions should now consider whether the applicants actually authorized the submitter to do so on their behalf.

When investigating the second "genuine interest" component, Regions must consider whether the applicant had the requisite experience for the job, engaged in any conduct incompatible with someone genuinely applying for the work, submitted resumes or application materials appearing to provoke a dispute, behaved in interviews consistently with someone genuinely seeking employment, and whether any similar indications demonstrated their purpose for applying was something other than genuinely seeking employment.

“Corporate Campaigns” and Card Check/Neutrality Agreements

“Corporate Campaigns” are an alternative to traditional “bottom up” or grass roots type organizing — where organizers try to convince employees to sign enough authorization cards to obtain a secret ballot election. “Corporate Campaigns” use a “top down” or “boardroom approach” to organizing.

Whether it is a combination of consumer boycotts, attacks on company directors, shareholder initiatives, or other means, a “corporate campaign” is designed to inflict pain, financially and politically, until the employer’s board of directors or top management decides it is preferable not to oppose a union’s organizing efforts.

The ultimate goal of a corporate campaign is usually to convince the employer to remain neutral (i.e., not contest the union’s efforts to organize employees) as a trade-off for the union stopping the corporate campaign. With a neutrality agreement, unions are typically given access to the workplace and employee contact details, and the employer often agrees to recognize and bargain with the union once it has been able to convince a majority of the employees to sign authorization cards without any secret ballot NLRB election.

Employers facing a “corporate campaign” or a request for a neutrality or card check agreement should consult with counsel, especially since the law in this area is evolving and complex.

Grass Roots Employee-Led Organizing and Relation to Social Issues

In recent years, there has been a significant increase in employee-led, or grass roots, organizing, supported by unions focused on social issues. Employees, unions and the public are all putting pressure on companies to show that they are socially responsible and provide workplace protections and benefits. Employees increasingly are engaging in protected, concerted activities, including walkouts, work stoppages, and demonstrations. Employees also are starting and leading their own grass roots movements, with support from established unions and with an increased emphasis on social issues and workplace protections. These movements are often driven by social media campaigns and outreach.

1. Toering Electric, 351 NLRB 225 (2007)